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HomeMy WebLinkAboutC-5318 - Pyrotechnic Public Display Contracti Fireworks & Stage FX America, Inc. dba: Fireworks America PO Box 488 Lakeside, CA 92040 619- 938 -8277 619 - 938 -8273 Fax BATF License Number: 9-CA- 073 -23-913-01112 9- CA- 073 -20-9B -01113 California Licenses: GPD -0528 I/E -1129 W -1132 1) This Contract, entered into this 19th day of December, 2012, by and between FIREWORKS & STAGE FX AMERICA, INC., dba FIREWORKS AMERICA, a California Corporation, duty licensed by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives and the State of California, hereinafter referred to as "FA" and THE CITY OF NEWPORT BEACH hereinafter referred to as "BUYER", 2) FA agrees to furnish BUYER, in accordance with the terms and conditions set forth herein, One (1) fireworks /special effects display as per Program A, submitted, accepted and made part hereof,and the services of a licensed pyrotechnic operator who will be in charge of the execution of said display unless otherwise agreed in writing. This display is to be performed on December 19, 2012, located at Balboa Pier 1, Newport Beach, Ca.. The time of the display is to be: 6:OOpm. 3) BUYER agrees to pay FA the sum of Ten Thousand Dollars (US) ($10,000.00), per the following terms: 50% of the Sum is to be paid to FA at the signing of the Contract, Balance Net 10 Days After Display. Signed Contract and Deposit must be received at FA by: , 4) Should the BUYER default on these payment terms, a finance charge at a rate of 1.5% per month, 18% annual percentage rate, or the maximum rate permitted by law, whichever is greater, will be charged and accrued on the unpaid balance of the Contract unfit the Contract is satisfied. FA is hereby authorized to receive BUYER`s financial information from any person or entity for the purpose of verifying BUYER's ability to pay. 5) BUYER, at its expense, agrees to provide FA a suitable DISPLAY SITE in which to stage, setup and fire the display. This DISPLAY SITE will incorporate an appropriate fallout zone, which has to be approved by FA, and that will fulfill any requirements set forth by any governing legal authority. Should the proposed site require the involvement of specialized equipment, watercraft or m clean up, BUYER agrees to provide said equipment and labor at BUYER's expense. Fireworks America Public Display Contract 6) BUYER, at its expense, agrees to provide adequate security to prevent any access to the DISPLAY SITE by members of the general public or any persons not expressly approved by FA. Any claim arising from damage to persons or property caused by any unauthorized access to the DISPLAY SITE is the sole responsibility of the BUYER. Should a multiple day setup be required, BUYER shall provide appropriate security during all the times FA is away from the DISPLAY SITE. 7) BUYER, at its expense, agrees to pay for any required "standby" Firemen, and/or any applicable permit costs and fees as required by state and local statutes, ordinances or regulations. BUYER agrees to indemnify FA for any and all changes or adjustments made to the DISPLAY at the request of any governing legal authority. 8) BUYER, at its expense, shall provide FA sufficient parking, all necessary site and event passes and allow FA sufficient time and available access, as determined by FA, to safely and professionally setup and discharge the display and subsequently remove the display equipment from the DISPLAY SITE. 9) Should BUYER fail to comply or prove itself unable to comply with the requirements stated in paragraphs 5, 6, 7 and 8 herein, FA shall have no obligation to continue with the performance of the display and the BUYER agrees to pay the full contract price plus any additional associated expenses incurred by FA. 10) BUYER agrees to assume the risk of weather, or any other cause that is beyond FA's control, that may prevent the display from being discharged on the scheduled date and time. in the event that FA, at its sole discretion, determines that the weather unsuitable for the discharge of the display, BUYER shall pay per the cancellation terms contained in paragraph 12 herein. 11) FA shall be responsible for the removal of all equipment provided by FA and clean up of any live pyrotechnic debris made by FA. FA will remove pyrotechnic debris either immediately after the display or the next morning, as best as is reasonable. BUYER shall be responsible for any other clean up which may be required including any environmental clean up. 12) BUYER shall have the option to cancel this display at any time. If BUYER decides to cancel, BUYER agrees to pay to FA 35% of the display contract price and all other associated costs incurred by FA, including, but not limited to, permits, insurance, pyrotechnic operator's fee, transportation, choreography, custom design or any other provable expense associated with the execution of the Display. In the event of a weather cancellation, BUYER shall pay FA 25% of the contract price and all other costs incurred by FA, such as permit fees, Pyrotechnic operator fees, transportation costs, etc.. FA will supply BUYER will an itemized breakdown of incurred costs. 13) BUYER agrees to hold FA harmless from all claims and penalties made against FA in the event that the display fails to start on time or is disrupted after commencement as a direct result of equipment or product malfunction or failure. 14) FA agrees to provide insurance coverage per Exhibit A (attached). This insurance covers the Page 2 operations of FA only and does not extend to any other aspect of the event at which such a display may be held. FA's operations are deemed complete when FA has vacated the premises. Fireworks America Public Display Contract 15) Should BUYER fail to perform its obligations as set forth herein, BUYER agrees to indemnify, defend and hold FA harmless from all claims and suits made against FA in conjunction with the discontinuance or cancellation of the display. 16) FA agrees to defend, indemnify and hold harmless BUYER from and against all claims and liability arising out of the services to be performed by FA hereunder, except to the extent arising from BUYER'S negligence or willful misconduct. 17) The laws of the State of California shall govern this contract. It is agreed that any court of competent jurisdiction located in the County of San Diego, CA shall be proper venue for an action. Should such action be brought to enforce or interpret the terms or provisions of this Contract, the prevailing party shall be entitled to reasonable attorney fees and costs in addition to any other relief to which they may be entitled. 18) Nothing in this contract shall be construed as forming a partnership, joint venture, agency or any form of legal relationship, other than contractual, between BUYER and FA. Neither party shall be held responsible for any agreements or obligations not expressly provided for herein and shalt be severally responsible for their own separate debts and obligations. 19) BUYER shall not under any circumstances, be entitled to recover any consequential damages from FA. Nothing in this paragraph shall be construed as a modification or limitation on the insurance coverages afforded in Paragraph 14 herein. 20) Other Considerations: Attached to this contract: Exhibit A & Fireworks America's Insurance Certificates 21) This agreement shalt be binding on the parties and on their heirs, executors, administrators, successors and assigns. In Witness the parties hereto, by or through their duty authorized agents, have set their hands and seals this 19th day of December, 2012. SIGNATURES ON NEXT P. Inc. 'adz ! W oli•., w1.^ S,fcri T ♦.A A .. ♦. ;. ♦ ♦ ♦ ♦♦ Title Page 3 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY OO !7E Date: By: / AaR Harp City Attorney Date: Ia.Iq• I�L By:0 Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation ate: MA • Iq • koa- CaLka Detweiler ec ation and Be ' r rvices Director �EWF+p ear G<rPpµN�r CONTRACTOR: Fireworks & Stage FX America. Inc. DBA Fireworks America Signature Date Print Name Print Title Rb6�.t Signature Date Print Name 3 Pdnt �rc�ed4 IEND OF SIGNATURES] EXHIBIT A— INSURANCE REQUIREMENTS 1. INSURANCE REQUIREMENTS — VENDORS 1.1 Provision of Insurance. Without limiting Vendors indemnification of City, and prior to commencement of Work, Vendor shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Contractor agrees to provide insurance in accordance with requirements set forth here. If Contractor uses existing coverage to comply and that coverage does not meet these requirements, Contractor agrees to amend, supplement or endorse the existing coverage. 1.2 Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 1.3 Coverage Requirements. 1.3.1 Workers' Compensation Insurance. Vendor shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. 1.3.11 Vendor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, Its officers, agents, employees and volunteers. 1.3.2 General Liability Insurance. Vendor shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than five million dollars ($5,000,000) per occurrence, five million dollars ($5,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products- completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. 1.3.3 Automobile Liability Insurance. Vendor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Vendor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an INSURANCE REQUIREMENTS C -1 amount not less than one million dollars ($1,000,000) combined single limit each accident. 1.4 Other insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: 1.41 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Vendor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Vendor hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subVendors. 1.4,2 Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. 1.4.3 Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. 1.4.4 Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 1.5 Additional Agreements Between the Parties. The parties hereby agree to the following: 1.5.1 Evidence of Insurance. Vendor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 1.5.2 City's Right to Revise Requirements. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Vendor sixty (60) days advance written notice of such change. If such change results in substantial additional cost to the Vendor, the City and Vendor may renegotiate Contractor's compensation. 1.5.3 Enforcement of Contract Provisions. Vendor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Vendor of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. INSURANCE REQUIREMENTS C-2 I 1.5.4 Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. 1.5.5 Self - insured Retentions. Any self- insured retentions must be declared to and approved by City. City reserves the right to require that self - insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. 1.5.8 City Remedies for Non Compliance If Vendor or any subVendor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this agreement, or to suspend Vendor's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Vendor or reimbursed by Vendor upon demand. 1.5.7 Timely Notice of Claims. Vendor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Vendor's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 1.5.8 Vendor's Insurance. Vendor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. INSURANCE REQUIREMENTS C-81 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 12//18/12 Dept. /Contact Received From: Raymund Date Completed: 12/19/12 Sent to: Raymund By: Renee Company /Person required to have certificate: Fireworks & Stage F/X America, Inc. Type of contract: All Other L GENERAL LIABILITY EFFECTIVE /EXPIRATION DATE: 1111/12 to 1111/13 /EXPIRATION DATE: 1/11/12 to 1/11113 A. INSURANCE COMPANY: Lexington Insurance Company INSURANCE COMPANY: New Hampshire Insurance Company B. AM BEST RATING (A-: VII or greater): A; XV AM BEST RATING (A-: VII or greater) X; XV C. ADMITTED Company (Must be California Admitted): ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ❑ Yes ® No D. LIMITS (Must be $1 M or greater): What is limit provided? $5,000,000 E. ADDITIONAL INSURED ENDORSEMENT — please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) include): Is it included? (completed Operations status does NIA F. not apply to Waste Haulers or Recreation) ® Yes ❑ No G, ADDITIONAL INSURED FOR PRODUCTS AND ® NIA ❑ Yes ❑ No G. COMPLETED OPERATIONS ENDORSEMENT (completed ❑ N/A ❑ Yes ® No H. Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No I. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes ® No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE /EXPIRATION DATE: 1/11/12 to 1/11113 A. INSURANCE COMPANY: New Hampshire Insurance Company B. AM BEST RATING (A-: VII or greater) X; XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS - if Employees (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $1,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided ?) NIA F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers only): ® NIA ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes ® No H. NOTICE OF CANCELLATION: ❑ N/A 0 Yes ❑ No 4cofz ®® CERTIFICATE OF LIABILITY INSURANCE 12/18!22012 012 DATE YYY) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Britton Gallagher One Cleveland Center, Floor 30 1375 East 9th Street ONTA T NAME: PHONE FAX .Eatc2.lfiZ100 alc No : _ _ EIAAIL ADDRESS: _ INSURERS AFFORDING COVERAGE NAIC# Cleveland OH 44114 INSURERA:LeXi gton Insurance Cc .$1,000,000 PREMISES IErr ocdurmpce INSURED INSURER B Insurance Co. $ INSURER C : $1,000.000 Fireworks & Stage F/X America, Inc. P. 0. Box 488 12650 Highway 67S Ste FA INSURER D : GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY X PRO- LOC Lakeside CA 92040 INSURER E: INSURER F B AUTOMOBILE COVERAGES CERTIFICATE NUMBER: 229324160 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INSR TR TYPE OF INSURANCE INSR MID POLICY NUMBER POLICY EFF MMIDD/l'YYY POLICY EXP MMIDDIYYYY LIMITS A GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE � OCCUR 1619322 -04 1/11/2012 /11/2013 EACH OCCURRENCE .$1,000,000 PREMISES IErr ocdurmpce $50,000 MED EXP (An y one person) $ PERSONAL &ADV INJURY $1,000.000 GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY X PRO- LOC PRODUCTS - COMP /OP AGG $2000,000 $ B AUTOMOBILE LIABILITY ANY AUTO A O .SCHEDULED AUU TOS S OS AUT. X NON -OWNED HIRED AUTOS AUTOS CA626568611 /11/2012 111112013 COMBINED 5INULL LIMIT (Ea accident 100000_0_ % BODILY INJURY (Per person) $ i BODILY INJURY Per accident) $ X PROPERTY DAMAGE Paraccid d _ $ A X UMBRELLA LIAR EXCESS LIAR OCCUR CLAIMS -MADE 015374896 /11/2012 /1112013 EACH OCCURRENCE $4,000,000 [9 AGGREGATE $4,000,000 DED I X I RETENTION$ 10,000 $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETORIPARTNERIEXECUTNE❑ OFFICEWMEMBER EXCLUDED? (Mandatory in NH) N YYes, describe under DESCRIPTIONOF OPERATIONS below NIA I WC STATU- I OTH- I TOR LIMITS E.L. EACH ACCIDENT $ EL .DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT - $ DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space is reeulred) Show Date: 12 -19 -12 City of Newport Beach; it's officers, agents, & employees when acting in their official capacity as such are named additional insured. Coverage is primary and non - contributory. City of Newport Beach 3300 Newport Blvd. Newport Beach CA 92663 ACORD 25 (2010/05) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1988 -2010 ACORD CORPORATION- All rinhfe The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 1619322 -04 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART, SCHEDULE Name of Person or Organization: The City of Newport Beach, its officers, officials, employees and volunteers (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement,) WHO IS AN INSURED (Section ii) is amended to include as an insured the person or organization shown In the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you. CG 20 26 11 88 Copyright, Insurance Services Office, Inc., 1984 Page 1 of 1 0 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ iT CAREFULLY. This endorsement, effective 12:01 A.M. 1/11/12 forms part of Policy No. 1619322-04 issued to The City of Newport Beach, its officers, officials, employees and volunteers by Fireworks & Stage F/X America, Inc. PRIMARY COVERAGE FOR SPECIFIED PERSONS OR ORGANIZATIONS NAMED AS ADDITIONAL INSUREDS — ONGOiNG AND COMPLETED OPERATIONS 777is endorsement modlfies insurance provided under the followmg., COMMERCIAL GENERAL LIABILITY COVERAGE FORM The following paragraph is added to SECTION iI —WHO IS AN INSURED and applies only to persons or organizations we have added to your policy as additional insureds by endorsement to comply with insurance requirements of written contracts relative to: a) the performance of your ongoing operations for the additional insures; or b) "your work" performed for the additional insureds and included in the "products- completed operations hazard: This insurance is primary over any similar insurance available to any person or organization we have added to this policy as an additional insured. However, this insurance is primary over any other similar insurance only if the additional insured is designated as a named insured in the Declarations of the other similar insurance. We will not require contribution of limits from the other similar insurance if the insurance afforded by this endorsement is primary. This insurance is excess over any other valid and collectible Insurance, whether primary, excess, contingent or on any other basis, if it is not primary as defined In the paragraph above. All other terms and conditions of the policy are the same.